Senate Chief Wary Of Fetus Guardian Bill

Governor Finds House Support, Won't Back Down On Legislation

January 28, 2004|By Bob Mahlburg, Tallahassee Bureau

TALLAHASSEE -- Hesitant to open a new battle over abortion rights, Senate President Jim King said Tuesday that he is "very reluctant'' to consider legislation to allow legal guardians to be appointed for fetuses whose mothers are incapacitated.

But Gov. Jeb Bush, who lost a recent court decision asking to name a guardian for the fetus of a developmentally disabled rape victim from Orlando, is not backing down and already has lined up a key House leader to help him.

"It's an important issue,'' said Rep. Sandra Murman, R-Tampa, who plans to sponsor the bill. "They came and talked to me and gave me some legislation. It's pretty straightforward. It just says there would be a guardian appointed for an unborn child.''

The move could again plunge Bush into the middle of controversy like last year's battle over legislation to halt the removal of feeding tubes from brain-damaged Terri Schiavo.

Bush asked for the legislation this week in the wake of a recent 5th District Court of Appeal ruling that the fetus of the developmentally disabled woman known as J.D.S. was not entitled to a guardian. Such a move, the court ruled, could "confer rights on the unborn.''

King, a moderate Jacksonville Republican, said Tuesday he opposes Bush's plan to name guardians for fetuses if their mothers can't make medical decisions.

"I think the courts have already decided that,'' King said. "I don't see any reason to run into that, nor do I want to.'' King said he would not rule out allowing such legislation, but added, "I would be a very reluctant participant.''

But House Speaker Johnnie Byrd, R-Plant City, and more conservative members of the House are seen as more receptive, which could set up a new battle. Murman, who also was in the middle of the Schiavo fight, said the proposal is not meant to push the envelope on abortions.

"It's the right thing to do,'' she said. "Terri Schiavo could have benefited from a guardian early on. I haven't taken the temperature of our members, but I think it's a critical issue.''

The governor also plans to keep pushing it, despite King's reluctance, a Bush aide said Tuesday.

"The governor thinks this is a very important issue,'' said press secretary Alia Faraj. "The governor is seeking a legislative solution so there is clarity in this matter. This legislation would only apply to very unique cases where a mom can't make a decision about the unborn.''

The question of whether the rape victim's fetus should be appointed a guardian made national news last spring and summer. Bush asked the courts to appoint a fetal guardian. But circuit and appellate courts said no.

A guardian was appointed for J.D.S. herself. She gave birth to a girl in August, after the guardian recommended against an abortion.

While rejecting a guardian for the fetus, all three appellate judges seemed to toss the issue back to the lawmakers.

"Whether the Legislature can confer rights on the unborn will be decided by the courts only if, and when, the Legislature enacts such legislation,'' Judge Richard Orfinger wrote. Dissenting Judge Robert Pleus went further, writing: "I would urge the Legislature to overturn this decision and affirm the fact that an unborn child is a person.''

Bush last year pushed legislation aimed at keeping the brain-damaged Schiavo on life support -- siding with her parents but against her husband's wishes. That law is now being challenged as unconstitutional.

The new proposal would give legal status to the unborn. Orlando-based Florida Right to Life backs Bush's position while the American Civil Liberties Union of Florida objects.

"I really think it's appalling,'' Paula Xanthopoulou of Miami, president of the National Women's Political Caucus of Florida, said Tuesday. "It's not government's business to make those decisions. Don't these people have other relatives? Why should the government get involved here?''

But Murman, who often urges limited government, said this is not a case of government intrusion.

"This is a situation where they have no one else to look out for them,'' Murman said. "I've heard the comments from the ACLU and those groups who feel this is not the right way to go, but we, as government officials, have to do the right thing. When we're protecting disabled people, we have to do it in all instances.''